The Mediation Is Dead Mantra

Part of my skill set involves mediation training. I am a mediator and I mediate cases. Usually those cases involve families seeking a divorce. If I work in that area, why would I maintain a website called “Mediation is Dead?” It’s an evolving answer, and an evolving statement, but one worth a discussion, so I’ll begin by saying when I mediate a case I used “Mediation is Dead” as my mantra before walking into a negotiation room.

Thank the man below for this, as well as the subsequent explanation.

Daniel Madison is one of the world’s foremost sleight of hand experts.  He’s used the mantra “Magic is Dead” for a long time. I’m a huge fan of his work, and it’s often scary how his insights into life mirror mine at times. Watch the embedded video above and substitute the word “mediation” for “magic” and Madison explains a principle in the legal world I’ve yet to fully articulate.

To add my flavor to the discussion, the mantra of Mediation is Dead is best explained by adding a phrase to the end of that statement. “Mediation is dead. It is the job of the practitioner to convince the parties and attorneys otherwise.”

When you come from that place as you enter a negotiation or mediation room, if you can truly state that in your heart, then you have the ability to get past all the bullshit attorneys and parties have as expectations for a mediator and really reach some powerful agreements with parties. You reveal their vulnerabilities and get them to show their humanity. When you get past the bright, happy, peaceful moments of your mediation training and pass through your first experiences with attorneys demanding you pander to them, you will finally reach that point where their client can reach peace with someone they never believed they’d agree with again.

Saying the words each time hurts me too. Death is a scary, painful thing. I’ve had my brush with it. I’ve been affected by it. It hurts to make the choice to take the path of peace and then see the art form you love butchered by attorneys who don’t understand what the words “alternative dispute resolution” mean. It pains me to see blown up expectations of clients massaged by counsel who begin with bluster, won’t allow their clients to speak, and begin each mediation with the parties dragged into separate rooms without as much as two minutes of a chance to see how the parties interact. If these attorneys paid attention during their Civil and Family training to get that coveted Rule 31 listing in Tennessee they’d realize it’s the parties decisions that count, and their presence is to ensure everything flies legally. It’s not about what will pass muster in someone’s court.

This is also why I don’t take the time to participate in many mediator groups, watch too much CME classes beyond what’s required of me, or read too many mediator articles.  So much of it has become polluted beyond the essence of the art form that is mediation. Gone are the days of interest-based mediation and getting to the heart of a problem. You’re more likely to get business if you simply pander to positions, study up on what a judge wants, and then play at evaluative case analysis. Every mediator that goes through training and gets a listing knows that’s not mediation. Yet that is what is expected of them.

The parties that go through mediations then take those experiences where they’re told to “bring a book or a computer” and “expect to be there all day” back to their families. After they’ve hit their “just get it done” moment, they eventually express buyer’s remorse and the whole cycle starts again, albeit with more venom this time. If they have a loved one, friend, or family member who goes through mediation, expect that party to tell their friend all about how the mediator and attorneys got to talk, and their voice remained silent.

When I start mediations, I usually do so with a deck of playing cards and a close up pad. I tell the parties in my opening statement they can’t agree on a thing, just as this entire deck is completely different. My job is to help them have an effective conversation, one that gets past the anger, rage, and other emotions they may experience in this moment so they can experience a moment of unity again.  Then I turn the cards over, showing them all identical, and say “Hopefully, by the time we’re finished, you’ll walk out of this mediation just like this deck of playing cards. In agreement and harmony.”

Echoing the words of Mr. Madison above.
I am Chris Seaton.
Mediation is Dead.

Mediation Tip: Leave Your Support At Home

If you are involved in a mediation, you may be tempted to bring someone with you for “emotional support.”  This is most common in family law cases, where feelings are at an all time high and conflict is at a maximum.  When the day and time comes for your mediation, leave that person at home.  The only “support person” you need in the room is your attorney, because your “emotional support” will cost you time and money, and have you leaving with no settlement and a trial date.

“Emotional support” is a good thing when you’re going through a divorce.  You’re in a vulnerable position, and you need a good network of friends and family to make sure you get through one of the most stressful life experiences a person can undergo.  A mediation isn’t time for therapy.  It’s time for resolution of your case and an attempt to reach an agreement between you and the other party.  Bringing an “emotional support” person into the mix will tank the entire session because they’ll never think you’re getting the best deal possible and always push for you to make the other side pay for some egregious sin of the past.  You, in your raw, vulnerable state, will be highly prone to suggestion and feed off the anger your “support” person is expressing.  This will lead to the rejection of an offer, and make everyone’s life more difficult as a whole.

The best support personnel you can have is a good attorney who understands the true nature of the alternative dispute resolution process, prepares you for the mediation by discussing the best and worst alternatives to a negotiated agreement, and guides you through the mediation session with tact and a strategic approach.  By the time you are finished with the session, and an agreement reached, you will be signing an agreement that will become a binding court order.  It’s crucial you have a lawyer actually look it over and advise you if any portion of the document won’t fly before the court.

If you’re a mediator reading this and allow parties to come as “emotional support,” and those people are allowed in your lobby, or worse yet inside the mediation rooms, cease the practice immediately.  An even better practice is to discourage parties seeking your services from bringing anyone other than an attorney in writing.  Place language into your Agreement to Mediate that has the parties expressly agreeing to not bring others into the mediation rooms.  If you’re actually practicing mediation and attempting in good faith to keep both parties at the same table, instead of breaking the parties and their lawyers into caucus for a game of “shuttle diplomacy” then keeping “emotional support” parties away from the mediation is going to stop the session from devolving into a shouting match.  If you can’t be bothered to conduct the session at one table, removing the “support” personnel will still help tremendously because while you’re working with parties in one room the other side won’t have someone continually in their ear rumbling angry thoughts about how “that bitch/bastard has it coming to him/her” and “make them pay.  That’s not good enough.  You deserve better.”

Divorce is a hard process.  It’s one where people experience very real pain and grief, so it’s good they have a network of support on which they can rely in the days, weeks, and months to come following the dissolution of their marriage.  The day(s) on which mediation takes place is not a time to have those parties available to tank the resolution of a dispute.  The availability of “emotional support” persons during the mediation, and mediator permissiveness in allowing these parties in to potentially shift the power dynamics of a mediation, is one more reason why I hang my head at the current state of mediation.

Mediation is Dead.

Leave Facebook for Real Life

I’m leaving Facebook behind because it’s a place full of navel-gazing bullshit.  Facebook doesn’t allow you to communicate with the world.  Facebook is a place where people go for validation, self-recognition, cat pictures, George Takei’s average gem, and ads.  Facebook doesn’t allow for Mediation is Dead, so I’m rarely there anymore.

Real life, conversely, doesn’t give a damn about you.  Real life means that you have to learn to communicate with others.  Real life means that you listen to those with whom you disagree, no matter how uncomfortable the conversation.  That’s where I need to head, and when I get back to that spot where I’m in real life, working with others, then I gain greater focus, clarity, and an understanding of what this world is really about: being able to communicate again with others and get your message across in an effective manner.

Do you know the algorithm behind Facebook?  It’s tailored to make sure you have a strong confirmation bias in your life.  It’s there to make sure Facebook is your “safe space,” because Facebook wants you to be there all the time, 24/7, checking in for everything you want to see, rather than the uncomfortable truth.  If you’re on Facebook you’re constantly seeing what you want to see. You’re seeing what those around you want to see.  It’s not reality, but if you’re living life on Facebook then you’re not living real life. You’re living a fiction you want to live.

Take your quizzes.  Take your cat pictures.  Take your memes, and get them the fuck out of my life.  I don’t get a damn thing done with Facebook.  I just get to a point where I’m deep in a rabbit hole of pandering bullshit. I’m arguing with people when I don’t need to argue.

I talked with a good friend of mine lately who’s more “conflict free” than I am.  He hasn’t checked his Facebook feed in about a year.  He’s much happier for it, because he’s living in real life.  He’s learned how to communicate with others.  He credits a good portion of that to “unplugging” from Facebook.

Another person I know hasn’t been on the site in about a year as well.  She’s happier and more together as a whole than most of us could be, because Facebook shows us what we want.  She decided that she’d get off Facebook and make her dreams come true, and she managed to do it by staying away from a website that’s a drug.

Real life is hard.  Real life doesn’t show you what you want to see.  Real life means that you have to face conflict when you see it, and when you get to real life, you have to address it as best you can.  Real life will make you grow, change, and be better.

Twitter’s only marginally better.  There you have to work to find what you want to see.  There you’re exposed to shadow bans, block lists, and people muting what you have to say.  But on Twitter you can learn things about people you can’t find anywhere else.

Facebook won’t even give you that.  I know this because I see people engaged with Facebook in ways they think is beneficial.  It’s not.  Once that algorithm starts its magic, you’re done.  You have to check in regularly.  You never know what you’re going to miss in a person’s life.  You get afraid of missing out.  There’s other ways to make sure you don’t miss out, but you won’t listen to those ways, because Facebook governs your life.  It’s the town crier in the world of the small-minded.

Leave behind the fear of missing out and you’ll get to a “conflict-free” life.  

When I leave Facebook, when I turned off the notifications, when I get focused, I get things done that most people can’t.  I make sure that I don’t instinctively respond to the “(x) commented on your post” responses.  I write.  I research.  I read.  And yet people think that Facebook is a good way to keep in touch with your “friends?” It’s done nothing but plan and set up your entire day from moment one.

Leave that stupid site behind and get into real life.  Don’t allow yourself to fall into the notion that the “town crier” consisting of virtual picket fences where people talk amongst themselves is anything but a place where people can’t learn anything other than what they want to learn and see what they want to see.

The best approach, the “wrongless approach” is to make sure that you don’t let social media use you.  You make sure that when you use social media, you’re doing it for a strategic advantage.

Be conflict-free.  Live the MiD life.  Embrace real life.